Paerau (Migration)

[2018] AATA 1815

Paerau (Migration) [2018] AATA 1815 (19 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gabriel Paerau

CASE NUMBER:  1803659

DIBP REFERENCE(S):  CLF2016/8850

MEMBER:Kira Raif

DATE:19 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 19 April 2018 at 7:50am

CATCHWORDS

Migration – Cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Risk to Australian community – Multiple criminal offences – Domestic violence orders – Rehabilitation program – Mental health treatment – Repeated nature of criminal conduct – Ability to maintain contact in home country – Best interests of the children

LEGISLATION

MigrationAct 1958, s 116

CASES

Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 8 February 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand, born in June 1991. He was last granted the Special Category visa in September 2007. On 8 February 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the [victim] and a relative. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been convicted of the following offences:   

   a.Contravention of domestic violence order (aggravated offence)

   b.Assault occasioning bodily harm – domestic violence offence

   c.Choking, suffocation or strangulation in a domestic setting

8. The applicant confirmed in his written submission to the Tribunal that he pleaded guilty to the above offences and has been sentenced to 18 months and 12 months imprisonment respectively.

9. In his response to the NOICC the applicant is recorded to have stated that he supports three daughters and his family will experience stress and hardship if his visa is cancelled. The applicant noted that he can receive help, counselling and rehabilitation in Australia and if he remains in Australia, he can provide for his family and his children and provide an environment he did not experience when he was a child. The applicant stated that now he can ask for help but previously he dealt with issues on his own. He wants to become a better person and stop domestic violence. The applicant states that he has spent his teenage years in Australia and considers Australia his home.

10. The applicant provided a written submission to the Tribunal on 16 April 2018, the day before his scheduled hearing. No explanation is offered by the applicant’s representative for the late submission of documents or for failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Samuta McComber Lawyers.

11. In his written submission to the Tribunal the applicant confirms that his past offences include

    a.Assault occasioning bodily harm

    b.Stealing – domestic violence offence

    c.Two counts of contravention of domestic violence order

    d.Breach of bail conditions

    e.Assaulting or obstructing a police officer

    f.Strangulation – domestic violence offence

    g.Contravention of domestic violence order.

12. The Tribunal finds that the applicant has been convicted of a number of offences involving violence towards others. He had been issued with a domestic violence order, indicating that a finding was made that a person named in the order required protection from the applicant. His convictions show that the applicant had breached that order. The applicant’s own evidence indicates multiple instances of family violence. In the Tribunal’s view, these offences show the applicant’s propensity to engage in criminal and violent behaviour and to disregard the law.

13. The applicant states in his response to the NOICC that he wants to engage in rehabilitation programs and stand up for victims of family violence. The applicant provided to the Tribunal evidence of his involvement in counselling sessions while in detention and a statement from a psychologist indicating the applicant will be able to access further treatment if released from detention. It is not readily apparent to the Tribunal why the applicant has expressed such a desire now and not in the past, when the conduct has occurred for a number of years. The Tribunal is concerned that the applicant’s expression of remorse and the claimed desire to improve are in response to the possibility of his visa being cancelled rather than reflective of a genuine intent to change.

14. In oral evidence the applicant said that while in detention, he realised his actions were not good and he voluntarily put himself through programs. In the past, the applicant said he was too ashamed to seek help but he has now realised it was okay to ask for help. However, the applicant’s evidence is that he has not done any programs since his offences started in 2011 or in 2013 – 2014 when he was also convicted of offences. The applicant told the Tribunal that in 2016 he had done a domestic violence program but because it was not voluntary, he did not learn much from it. The applicant said that since his detention 2017 he has voluntarily engaged in programs and continues to do that and he found these programs very helpful. The Tribunal notes that despite completing a program in 2016, the applicant continued to engage in domestic violence and other offences in 2017. In the applicant’s circumstances, and despite the applicant’s assurances, the Tribunal is not satisfied that the applicant’s engagement in programs would ensure his behaviour would be different in the future.

15. Having regard to the nature of the offences and the repeated nature of the criminal conduct over a number of years, the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety or good order of the Australian community (relating to the applicant’s general criminal and violent conduct) or a segment of the Australian community (women) or to the health or safety of an individual (the [victim]).

16. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

17. There are no matters specified in the Act or Migration Regulations 1994 that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. The purpose of the Special Category visa is to enable the visa holder to live in Australia. The applicant has been living in Australia since the age of seven and his entire family are in Australia. The applicant claims he considers Australia to be his home. The Tribunal accepts that the cancellation of the visa would preclude the applicant’s ability to remain in Australia with his family, unless he is granted another visa. The Tribunal acknowledges that the presence of his family, and three minor children, may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

19. There is no evidence that the applicant failed to comply with any visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

20. The applicant provided to the Tribunal an unsigned statement from [the victim], who refers to her close relationship with the applicant and the [other family] and her desire to re-establish a close family relationship. The  [victim] states that it would cause her and the [family] hardship if the applicant’s visa is cancelled and if the family is separated. She gave the same oral evidence to the Tribunal.

21. The applicant provided to the Tribunal an unsigned letter from his mother, Ms Paerau, who refers to the applicant as being a hard working and supportive family man. She states that the applicant’s actions were due to his intoxication and states that he was ‘not himself’ at the time. Ms Paerau refers to the support the applicant will receive. The applicant also presented supportive statements from his sister and his former employer, as well as a number of other statements. The Tribunal accepts that the applicant has strong family ties in Australia and is prepared to accept that a degree of hardship would be caused to the applicant and his family if the applicant was required to leave Australia.

22. The applicant provided statements from several other relatives who refer to the close family relationship and the support family members provide to each other. The applicant also provided to the Tribunal evidence of his past employment. The applicant claims that he had been productively employment in the past and has employment options available to him. The Tribunal accepts that evidence

23. The applicant refers in his submission to the Tribunal to having mental health treatment available to him in Australia. The Tribunal accepts that this is the case but the Tribunal is not satisfied that the same treatment, or adequate treatment, would not be available to the applicant elsewhere. The applicant’s evidence to the Tribunal is that if he is to go to New Zealand, he would continue with the psychological treatment. The Tribunal does not accept that the applicant would be unable to access adequate treatment in New Zealand if he has to leave Australia.

24. The applicant states that he plans to re-engage with his daughters and improve his relationship with them. The applicant said that the domestic violence order expired around July 2017 In the Tribunal’s view, the applicant is able to re-establish his relationship with [the victim and family] whether or not he remains in Australia. Even if the applicant was to leave the country, he will be able to have electronic communication with his children and improve their relationship, and the applicant will be able to apply for a visa in the future, and should the [victim] wish to encourage the applicant’s relationship with the children, they may visit the applicant in New Zealand. Should the applicant resume his relationship with [the victim], he may be able to seek another visa in the future on the basis of such a relationship and the applicant may also be able to apply for a further Special Category visa in the future, subject to any exclusion period that may apply to him. Thus, while the Tribunal accepts that the applicant’s access to the children will be far more limited if they live in different countries, the Tribunal finds that they will be able to maintain a meaningful relationship whether or not the applicant remains in Australia and, at least after a passage of time, the applicant will be able to seek another visa if he decides to return to Australia.

25. The applicant argues in his evidence to the Tribunal that he has never lived in New Zealand. He has been residing in Australia since the age of 7 and prior to that he lived in the Cook Islands. His siblings were born in Australia and are Australian citizens.  He completed his education here and obtained employment. The Tribunal acknowledges that the applicant has not lived in New Zealand, although he is entitled to do so as a New Zealand citizen. The Tribunal accepts that a certain degree of hardship may be caused to the applicant if he was required to re-establish himself in a new country and away from his family in Australia. However, the applicant would have no difficulties with language and cultural norms, his skills are transferrable and he will be able to maintain contact with his family in Australia. The Tribunal does not consider that the applicant would experience great difficulty re-establishing himself in New Zealand.

26. The applicant states that his entire family is in Australia and that he will have no family support in New Zealand. As noted above, the Tribunal accepts that separating the applicant from his family may cause a degree of hardship to him and his relatives but the Tribunal is of the view that the family can maintain communication and it may also be possible for them to travel between Australia and New Zealand, should they wish to maintain personal contact. The applicant is an independent adult and the Tribunal does not accept that the applicant would experience any significant degree of hardship if he was required to re-establish himself in a new country.

27. The applicant also submits that his departure from Australia would cause ‘significant distress’ to his family in Australia, including his siblings. The Tribunal acknowledges the various statements from the applicant’s family but the Tribunal is of the view that the family will be able to maintain communication with the applicant and visit the applicant as frequently as they wish. The Tribunal does not accept that a ‘significant degree of distress’ will be caused to the applicant’s family if he was required to leave the country. 

28. The applicant claims that he made a contribution to the Australian community by maintaining employment. It is not entirely clear to the Tribunal how employment necessarily equates to a positive contribution to the community, but the Tribunal accepts that the applicant has been employed.

    Circumstances in which ground of cancellation arose

29. The grounds for cancellation arise because the Tribunal has formed the view that the applicant’s presence to Australia is or may be a risk to others. In his written submission to the Tribunal the applicant argues that the risk to [the victim] is minimal if not remote, despite the domestic violence that occurred in that relationship. The Tribunal’s concern, however, is not only with the risk the applicant poses to [the victim] but also the risk he may pose to the broader community through his violent behaviour, and to women, given the multiple instances of the applicant’s engagement in family violence.

30. The applicant argues in his written submission to the Tribunal that the risk of harming [the victim] is minimal, their relationship has been in existence for [number of] years before the first domestic violence incident occurred and if domestic violence offending was an immutable part of his character, he would have committed a greater number of offences throughout the relationship. The Tribunal considers this an odd submission. Putting aside the fact that domestic violence offences are notoriously under-reported, the applicant appears to suggest that because there were only two incidents of family violence in a [number] year relationship, these should not be given weight or could be excused. The Tribunal does not consider that to be so. The issue is not whether offending is an ‘immutable part’ of his character. Whether the applicant started engaging in criminal conduct recently or many years ago, the information cited above indicates he has been involved in a series of very serious offences involving violence against another person. The fact that these are recent does not detract from the seriousness of the conduct.

31. The applicant argues that the time he has spent in custody, together with the mental health treatment he has received, resulted in him having a greater understanding of his past conduct and, with the future treatment, the risk future harm is reduced. The Tribunal does not accept that such risk is non-existent and the Tribunal’s concern is that if the applicant chooses to engage in violence to resolve his issues, he may do so in relation to others, whether [victims] or other members of the community. Therefore, it is not sufficient to state, as the applicant does, that there is minimal risk of harm to [the victim]. The Tribunal acknowledges the evidence of [the victim’s] relatives. However, the Tribunal’s concern is not only in relation to the potential of harm to one person but the applicant’s overall conduct. As noted elsewhere, the Tribunal does not consider that the likelihood or the seriousness of harm to the  [victim] are determinative in the exercise of discretion.

32. The applicant also argues that his voluntary decision to take steps to address the past offending should be considered in his favour. As noted elsewhere, the Tribunal has concerns about the applicant’s motivations in taking these steps, given the timing of the applicant’s engagement in the programs, but the Tribunal accepts that the applicant has participated in rehabilitation programs and has expressed his remorse about past conduct.

    Past and present conduct of the visa holder towards the department

33. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

34. The applicant provided to the Tribunal his prison records indicating he has been polite and cooperative while in detention and the Tribunal accepts that evidence. The applicant also argues that he has been truthful with the Tribunal by disclosing information about court outcomes and details of his previous offences and that evidences his remorse.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. Although the Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period in Public Interest Criterion (PIC) 4013 or Special Return Criterion (SRC) 5002, the Tribunal also notes that it may be possible for the applicant to depart Australia voluntarily to avoid being removed and the exclusion under SRC 5002.

   Whether there would be consequential cancellations under s.140

2. There are no persons in Australia whose visas will be subject to cancellation under s.140 of the Act.

   Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

3. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of his visa being cancelled. The Tribunal finds on the evidence before it that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

4. In his written submission to the Tribunal the applicant refers to the International Covenant on Civil and Political Rights (ICCPR) and Convention on the Rights of the Child (CROC) and states that the best interest of his children must be given primary consideration.

5. The Tribunal accepts that the applicant has three children in Australia and while they are not Australian citizens, the Tribunal accepts that their intention is to remain in Australia and be granted citizenship. The applicant and [the victim] refer to the close relationship the applicant has with his daughters and the support he has provided them, including financial and emotional support and regular conduct. The applicant states that he took care of the eldest daughter for about 12 months before she returned to live with her mother. The applicant notes that since his detention, the child’s performance at school has deteriorated. The applicant states that he speaks to his children daily. The Tribunal is mindful that he is able to do that whether he remains in Australia or travels to New Zealand. There is no evidence that the applicant’s relationship with [the victim] has resumed, even though the applicant claims he hope to reconcile. Given the history of the relationship, that may or may not happen. While undoubtedly the applicant will have better opportunities to visit his children and spend time with his children if he remains in Australia, there is no suggestion that the applicant intends to return to the family home or that plans have been made for that to happen in the immediate future. The evidence before the Tribunal is that the applicant will live with his sister if released from detention. That is, any personal contact the applicant would have with his children would be limited. That level of contact can continue, should the parents agree this should happen. Thus, while the Tribunal accepts that if the applicant was to relocate to New Zealand, his personal contact with his children will be much more limited  than if the applicant remains in Australia, the Tribunal is of the view that the applicant’s electronic contact with his children can continue without any interruptions.

6. The applicant refers to providing financial support to his children. The Tribunal is prepared to accept that he has done so but there is no reason why the applicant could not obtain employment in New Zealand and maintain such support. The applicant’s evidence to the Tribunal is that he would look for a job in New Zealand.

7. The applicant claims that separation from their father would have an adverse effect on the children. The Tribunal is mindful, however, that the separation has been caused by the breakdown of the applicant’s relationship with the [victim] and not by the cancellation of his visa. The evidence before the Tribunal is that since the separation, the applicant has not been living in the family home and that in itself has limited his contact with his children, although the Tribunal accepts such contact did exist prior to the applicant’s detention. The Tribunal also places significant weight on the circumstances of the applicant’s separation from [the victim]. It was caused by repeated family violence against the [the victim]. The applicant has been issued with the domestic violence order to protect the [the victim] and the information cited above indicates that he had repeatedly breached the domestic violence order. He had committed serious violence towards the [the victim]. The applicant and [the victim] indicate that the violence never occurred in front of the children and the Tribunal acknowledges the various supporting statements that have been presented. However, the Tribunal considers that it is not in the best interests of the children to experience, observe or be present in a relationship that is affected by such violence. The Tribunal acknowledges the applicant’s evidence that the risk of future violence against [the victim] is small, that he has participated in rehabilitation programs and hopes to reconcile and in the Tribunal’s view, he is able to reconcile irrespective of his visa status, and be sponsored by his partner for a visa in the future, should she decide that is what she wishes to do.

   Any other relevant matters

8. The applicant argues in his written submission to the Tribunal that it is necessary to quantify the risk he poses to his [victim] in order to balance that risk to the factors against the cancelation. The Tribunal does not accept that this is so. Having found that the applicant’s presence in Australia is or may be a risk (and the Tribunal has formed the view that his presence here may pose a greater risk to others than to [the victim]), there is no balancing between the seriousness of the risk and other factors. If the risk exists or may exist, the ground for cancellation is made out but the discretionary considerations do not require the quantification of such risk.

9. The applicant claims that significant weight should be given to the fact that he has voluntary engaged with mental health services since his imprisonment in July 2017 to present and is committed to continue to engage with that treatment if he is allowed to remain in Australia. The Tribunal accepts that the applicant has engaged in such programs and, as noted above, documentary evidence of such engagement has been provided to the Tribunal. However, the court outcome sheet which the applicant presented to the Tribunal indicates that the first offences (burglary and enter premise with intent to commit an indictable offence) occurred in 2011 and there is no evidence that the applicant has expressed any remorse about his conduct or took any actions to change. He was convicted in 2014 for failure to appear in accordance with an undertaking and in 2013 for possession of utensils. Again, the applicant has not done anything to engage in any rehabilitation programs or to change his conduct but he continued to offend. He was convicted of further offences in 2016 and in 2017. The applicant’s evidence is that even though he had participated in a domestic violence program in 2016, he did not learn anything from it and despite the program, the applicant again committed violent offences against [the victim] in 2017. The Tribunal is not convinced that significant weight can be placed on the fact that the most recent programs have been voluntary, unlike the 2016 program. The Tribunal accepts that the applicant now wishes to change his behaviour but given the applicant’s history of violent conduct, the Tribunal is not satisfied that his participation in such program will necessarily achieve that goal.

10. The applicant refers to having been exposed to family violence, unhelpful experiences in his childhood, depression and anxiety and a general lack of confidence. The Tribunal acknowledges that evidence but does not accept that it needs to result in the applicant perpetrating violence against others. The applicant claims he has now gained insight into his problems and reasons for the past behaviour, and the programs he previously been involved in from January 2016 did not address the issues that caused him to re-offend. He has now decided not to return to working in nightclubs until he has more confidence in not being influenced into drinking after work. He also intends to gain the support he needs to continue with his mental health treatment and recovery. The applicant claims the plans he made for the future indicate he will not make the same mistakes he has made in the past. The Tribunal acknowledges the applicant’s submissions but is mindful that the two incidents which resulted in the convictions occurred over a period of a year and a half. The Tribunal is of the view that the applicant had ample time and opportunity to reflect on the causes of his behaviour after the first incident, engage in any support programs and take steps that would alter his behaviour and avoid violence. It is not apparent that he has done that effectively and even though he claims to have participated in some programs from early 2016, the applicant had reoffended in 2017.

11. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety or good order of a segment of the Australian community (women) or to the safety or [individual or individuals] and that there are grounds for cancelling the visa. The Tribunal acknowledges that the cancellation of the visa may cause a degree of hardship to the applicant and his family in Australia as the cancellation of the visa is likely to result in the applicant having to leave Australia and separate from his family. The Tribunal acknowledges the applicant’s evidence that he has been living in Australia since the age of seven, has completed his studies here and worked throughout his adult life. The Tribunal accepts the applicant has the support of his family and that he has strong family ties to Australia and acknowledges several written statements that have been presented to the Tribunal from family members and others. The applicant has never lived in New Zealand and the Tribunal accepts that some hardship would be caused to the applicant due to having to re-establish himself in a new country. The Tribunal acknowledges that the applicant complied with visa requirements and appears to have been cooperative with the Department and the Tribunal.

12. Against these considerations, the Tribunal notes that the convictions relate to offence which involved violence towards others. These offences are multiple. Having been issued with the domestic violence order, the applicant continued to engage in criminal and violent behaviour through multiple breaches of the order and escalating violence towards [the victim]. The Tribunal acknowledges the applicant’s evidence that he is remorseful about his actions, has now participated in rehabilitation programs, is more aware of his behaviour and that there is little or no risk of his re-offending. As the Tribunal notes elsewhere, if the applicant decides to reconcile with [the victim], he can seek another visa in the future.

13. The Tribunal acknowledges that the cancellation of the visa may lead to the separation of the applicant and his children in Australia and the Tribunal accepts that the applicant has played a role in his children’s upbringing prior to his detention. The Tribunal has formed the view that the applicant will be able to continue to communicate with his children whether or not he resides in Australia and he will be able to provide them with financial support, if he chooses to do so. The Tribunal is mindful that on his own evidence, the applicant has been living separately from [the victim] – and the children – from February 2016. Significantly, the Tribunal considers that the best interests of the children would not be best served by the applicant’s presence here because of the serious violence that had affected the applicant’s relationship with the [victim]. The Tribunal does not consider it is in the best interests of the children to observe or witness such conduct. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

14. The Tribunal acknowledges that the applicant has limited opportunities of making a further visa application, although any exclusion period in PIC 4013 and SRC 5002 is temporary. The applicant will not be subjected to indefinite detention and will be able to seek another visa, albeit at a later date. The Tribunal is also mindful that the applicant is eligible to apply for a Bridging E visa or depart Australia voluntarily to avoid being removed from Australia and to avoid or minimise the exclusion period. That is, there is a real possibility that the applicant will be reunited with his family in the future, should he choose to return to Australia.

15. The Tribunal acknowledges that there are strong reasons why the visa should not be cancelled. However, the Tribunal places greater weight on the nature of the applicant’s conduct and the circumstances in which the ground for cancellation arose. The applicant had engaged in significant criminal conduct and has shown a serious disregard for the law. He engaged in violent offences and perpetrated violence against [the victim] and had done so over a period of time. He engaged in other criminal and anti-social behaviour and his criminal conduct continued over a five year period.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kira Raif
    Senior Member